LUIS RUIZ AND HENRY DIAZ, PETITIONERS V. UNITED STATES OF AMERICA
No. 90-5099
In The Supreme Court Of The United States
October Term, 1990
On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Fourth Circuit
Brief For The United States In Opposition
OPINION BELOW
The opinion of the court of appeals (Pet. App. 1A-9A) is not
reported.
JURISDICTION
The judgment of the court of appeals was entered on March 12, 1990.
The petition for a writ of certiorari was filed on June 4, 1990. The
jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).
QUESTIONS PRESENTED
1. Whether the evidence was sufficient to support petitioner Diaz's
convictions.
2. Whether the district court erred in refusing to grant petitioner
Ruiz's motion for a severance.
3. Whether the district court correctly admitted evidence of prior
acts by petitioner Ruiz that immediately predated and related to the
charged conduct.
4. Whether the court's resolution of a disputed factual issue at
sentencing concerning petitioner Ruiz was supported by adequate
evidence.
STATEMENT
Following a jury trial in the United States District Court for the
Eastern District of North Carolina, petitioners Luis Ruiz and Henry
Diaz were each convicted on one count of possession of a kilogram of
cocaine with intent to distribute it, in violation of 21 U.S.C.
841(a)(1) (Count 1); one count of interstate travel with intent to
promote, manage, and carry on an unlawful activity, in violation of 18
U.S.C. 1952(a)(3) (Count 2); and one count of conspiracy to possess
cocaine with intent to distribute it, in violation of 21 U.S.C. 846
(Count 3). Ruiz was sentenced to 72 months' imprisonment, to be
followed by four years' supervised release. Diaz was sentenced to 60
months' imprisonment, to be followed by four years' supervised
release. Both were also fined $5,000. The court of appeals affirmed.
Pet. App. A.
The evidence at trial established that, as the result of
information provided by a government informant, petitioners were
stopped at the bus station in Fayetteville, North Carolina, on
September 7, 1988, as they got off a bus from New York City. They
consented to searches of their bags, and were arrested when a package
of cocaine was found in Ruiz's luggage.
The informant advised DEA Agent Chris Jackson that Ruiz was
involved in purchasing kilogram quantities of cocaine in New York and
bringing the drugs to Fayetteville by bus. The informant put Jackson
in touch with Ruiz, and Jackson posed as a drug dealer as he discussed
with Ruiz the possible purchase of a kilogram of cocaine for $17,000.
Problems developed, however, because Ruiz was unwilling to provide the
drugs without an advance payment, and Jackson would not agree to pay
before taking delivery of the drugs. Pet. App. 3A-4A.
Ruiz told the informant that he was trying to find someone who
would allow the cocaine to be brought to Fayetteville without the need
for an advance payment. In that connection, Ruiz mentioned a friend
named "Henry," and said the two of them wanted to make enough money to
open a nightclub in Fayetteville. Pet. App. 4A.
On September 6, 1988, the informant went to Ruiz's house and found
him preparing to travel to New York. Ruiz said he had been given
$8,000 by someone as a partial payment for a kilogram of cocaine and
that he was going to New York to get the cocaine. Ruiz offered to do
the same for the informant and Jackson, but the informant said Jackson
was still not willing to pay in advance. Ruiz agreed to try to obtain
a kilogram of cocaine for Jackson without any initial payment. Ruiz
explained that he planned to use the same technique he had used
previously, that is, to fly to New York and return the following
morning on the bus. Ruiz said his friend Henry would pick him up in
New York, and that Henry would come back with him in order to carry
the rest of the money for the cocaine back to New York. Pet. App. 4A.
The informant later called Agent Jackson and repeated what he knew
about Ruiz's plans to travel to New York to purchase cocaine. He told
Jackson that Ruiz would be leaving Fayetteville that afternoon for New
York City on Piedmont Airlines flight 52, sitting in seat 2-B, and
that he would return to Fayetteville by bus the next morning. The
informant also said Ruiz would be returning with a man named Henry and
that Ruiz expected to be picked up at the bus station either by Debbie
Lee or by another friend named John. He described the car that Debbie
Lee would be driving as well as the one John would be using. The
informant gave Jackson a physical description of Ruiz and said that he
would be carrying the cocaine in a gym bag. Pet. App. 4A-5A.
State police confirmed that Ruiz had reserved seat 2B on the
Piedmont flight, and agents were waiting at the bus station the next
morning when the bus from New York arrived. The agents saw a woman
who matched the informant's description of Debbie Lee, as well as a
car that matched the informant's description of one of the vehicles.
Pet. App. 5A; Gov't C.A. Br. at 6-7. When the bus from New York
arrived, the agents saw two Hispanic men, later identified as
petitioners, get off the bus. The agents approached the two men and
asked to speak with them. When Diaz was asked to show some
identification and his bus ticket, he produced identification but said
that Ruiz had his bus ticket. Ruiz produced both bus tickets. The
agents then asked if they could search petitioners' bags, and each one
consented. In Ruiz's gym bag, one of the agents found a yellow
package wrapped in tape that contained a kilogram of cocaine. Both
petitioners were then arrested. Pet. App. 5A; Gov't C.A. Br. at 7-8.
The officers searched Ruiz and found $1,400 in cash as well as an
address book that contained Diaz's telephone number in New York and
notations of names, amounts owed, and other figures. Diaz's wallet
contained a piece of paper on which was written Ruiz's name and his
address in Fayetteville. Pet. App. 5A. /1/
In a statement made after his arrest, Ruiz admitted that he had
gone to New York to buy cocaine for two people whom he knew only by
their first names. Ruiz said he took a cab from the airport to a park
off Amsterdam Avenue in the Bronx, where he arranged to buy a kilogram
of cocaine from some people he did not know. He said he paid $8,000
to one of the people and received a package in a blue plastic bag,
which he did not examine but assumed contained cocaine. Then he made
bus reservations to return to Fayetteville. Ruiz said he bought two
tickets when his friend Henry said he would like to return with him to
Fayetteville. Ruiz said he did not know any drug dealers in New York
other than the unknown persons from whom he had bought the kilogram of
cocaine, and that the New York purchase had been his first drug
transaction. When asked about the $1,400 found in his wallet,
however, Ruiz explained that the money constituted the profits from
drug dealing. Pet. App. 5A-6A; Gov't C.A. Br. at 8-9.
Diaz gave a separate statement, in which he said that Ruiz had
telephoned him the day before and told him he would be arriving at
LaGuardia Airport in New York at 6 p.m. that evening. Diaz and an
unnamed friend picked up Ruiz at the airport and returned to Diaz's
apartment. Ruiz and the friend left the apartment and the friend
returned by himself about one hour later; Diaz and the friend later
met Ruiz at the bus station. Diaz explained that he had come to
Fayetteville for a couple of days' vacation, and that this was the
first time he had seen Ruiz in two months. Pet. App. 6A; Gov't C.A.
Br. at 9-10.
Petitioners did not testify at trial and presented no evidence in
their defense. Ruiz relied on an entrapment defense, and Diaz claimed
a lack of any knowledge of or involvement in the crimes charged. Pet.
App. 6A; Gov't C.A. Br. at 10.
ARGUMENT
1. Diaz contends (Pet. 5-9) that the court of appeals erred in
finding the evidence sufficient to support his convictions.
The evidence as to Diaz showed that Ruiz told the informant of his
intention to travel to New York, buy a kilogram of cocaine with a
partial payment, return to North Carolina to sell it, and then send
the remaining payment back to New York. Ruiz told the informant that
his friend "Henry" would be returning to Fayetteville with him and
would take the rest of the money back to New York. Law enforcement
agents confirmed that the travel arrangements described to Jackson
were indeed made, and they met Ruiz at the bus station the following
day, returning just as he had said he would. With him was petitioner
Henry Diaz, whose bus ticket Ruiz had in his possession. And in
Diaz's pocket was a piece of paper with Ruiz's name and address
written on it. In addition, telephone toll records established that
Ruiz made nine separate calls to Diaz's number in New York in the days
immediately preceding Ruiz's trip to New York.
From this evidence, the jury could reasonably conclude that Diaz
was a knowing participant in the conspiracy and that he accompanied
Ruiz to Fayetteville to make sure that the drugs were completely paid
for. Diaz claims there was no direct evidence of his criminal intent.
But knowing participation in a conspiracy can be shown by
circumstantial evidence; indeed, intent is rarely shown by direct
proof. United States v. Briscoe, 896 F.2d 1476, 1505 (7th Cir.),
cert. denied, 111 S. Ct. 173 (1990); United States v. Brown, 856 F.2d
710, 711-712 (4th Cir. 1988).
Diaz's knowledge could be inferred from (1) his close association
with Ruiz on Ruiz's brief trip to New York, which was made for the
sole purpose of purchasing cocaine, (2) the many telephone calls from
Ruiz to Diaz just before the trip, and (3) Diaz's travel with Ruiz
back to North Carolina. Particularly incriminating was Ruiz's
statement to the informant that his friend Henry -- a clear reference
to Diaz -- would be coming back to Fayetteville with him in order to
take the rest of the drug proceeds back to New York.
2. Ruiz claims (Pet. 10-13) that the district court erred in
refusing to grant his motion for a severance, because he was prevented
by the joint trial from having his own exculpatory statement presented
to the jury in its entirety. This claim is without merit. The court
of appeals properly held that Ruiz failed to meet the burden of
showing that the district court's denial of his severance motion was
an abuse of discretion that deprived Ruiz of his right to a fair
trial. Pet. App. 6A-7A.
A portion of Ruiz's post-arrest statement was excluded from
evidence at trial. Ruiz had stated that Diaz was not involved in the
drug conspiracy, but Ruiz admitted telling Diaz he was carrying
cocaine. For that reason, Ruiz said, he had discouraged Diaz from
traveling with him to Fayetteville. C.A. App. 54. The district court
ordered that portion of Ruiz's statement redacted and not presented to
the jury, because the court found that it was inconsistent with Diaz's
defense at trial that he was unaware of any drug dealing by Ruiz.
C.A. App. 654-656. Because that portion of Ruiz's statement
implicated Diaz in at least the substantive counts, redaction was
necessary under this Court's holdings in Cruz v. New York, 481 U.S.
186 (1987), and Richardson v. Marsh, 481 U.S. 200 (1987). /2/
Ruiz argues that the portion of this statement that was redacted
because it was inculpatory as to Diaz was exculpatory as to him and
would have been admissible in a separate trial. He therefore claims
that the redaction of his own exculpatory statement prevented him from
presenting his entire defense to the jury, so that the denial of his
motion for a severance was prejudicial error. This argument is flawed
for two reasons.
First, Ruiz overlooks the fact that he could not have offered his
entire statement in a separate trial because it would have been
inadmissible hearsay. The government was allowed to offer his
statement as an admission of a party-opponent under Fed. R. Evid.
801(d)(2)(A), but Ruiz himself could not offer his own out-of-court
statement. He would have to testify in order to offer his explanation
of the circumstances surrounding his possession of the drugs. In a
separate trial, the government might have offered Ruiz's statement
again, in which case Ruiz could perhaps insist on the admission of the
entire, unredacted statement under the rule of completeness, Fed. R.
Evid. 106. But if the government chose not to use his statement, Ruiz
would have no way of introducing it. The uncertain possibility that
his statement might be offered at a separate trial, or that Ruiz might
waive his Fifth Amendment privilege and testify, is not enough to
demonstrate prejudice from a failure to grant a severance. See United
States v. Funt, 896 F.2d 1288, 1297-1298 (11th Cir. 1990); United
States v. Castro, 887 F.2d 988, 997-998 (9th Cir. 1989); United
States v. Ford, 870 F.2d 729, 731-732 (D.C. Cir. 1989); United States
v. Parodi, 703 F.2d 768, 780 (4th Cir. 1983).
Furthermore, contrary to Ruiz's claim, the redacted portion of his
statement was not exculpatory as to his involvement in the conspiracy.
In the excluded portion of his statement, Ruiz had said that he told
Diaz he was returning to Fayetteville with drugs and that he urged
Diaz not to come back with him because he did not want Diaz involved
in the transaction. As the prosecutor pointed out when defense
counsel for Ruiz urged the admission of the entire statement, this
portion of the statement did not exculpate Ruiz on the conspiracy
count. It tended to show only that Ruiz did not conspire with Diaz.
It said nothing about his involvement with others in New York, as well
as those in North Carolina for whom Ruiz was buying the cocaine. See
C.A. App. 654-656. Thus, even if Ruiz's entire statement might have
been admitted in a separate trial, the portion that was not admitted
here was not sufficiently helpful to Ruiz that its absence seriously
prejudiced him. United States v. Ford, 870 F.2d at 732; United
States v. Machado, 804 F.2d 1537, 1544 (11th Cir. 1986); United
States v. Leichtman, 742 F.2d 598, 605 (11th Cir. 1984).
3. Ruiz also challenges (Pet. 13-16) the admission of evidence that
he had engaged in prior acts of drug dealing. He argues that the
evidence was not properly admitted under Fed. R. Evid. 404(b), because
it was not relevant to a contested issue but was introduced solely to
show his bad character.
The challenged evidence concerned the testimony of the informant
about the negotiations he had with Ruiz during August about a possible
cocaine purchase, including Agent Jackson's conversation with Ruiz,
and about a trip to New York that Ruiz made in mid-August during which
he bought a half kilogram of cocaine. C.A. App. 459-477, 528.
The court of appeals found no error in the introduction of this
evidence, holding that "(t)his testimony was a necessary background
required to set the stage and allow a proper understanding of the
testimony that would be presented as to the final trip to New York and
the return by bus." Pet. App. 7A. The court further noted that "(t)he
district court was careful in ruling on the admission of this evidence
and excluded evidence that was not material to the acts covered by the
indictment." Ibid. The courts below were clearly correct in making
this evidentiary ruling.
"Other acts" evidence is admissible if it is relevant to a material
issue in the case and is not introduced solely to show criminal
disposition. Huddleston v. United States, 485 U.S. 681, 688-689
(1988); United States v. Cohen, 888 F.2d 770, 776 (11th Cir. 1989);
United States v. Percy, 765 F.2d 1199, 1204 (4th Cir. 1985); United
States v. Zeuli, 725 F.2d 813, 816 (1st Cir. 1984); United States v.
Masters, 622 F.2d 83, 85 (4th Cir. 1980).
The relevance of this evidence is clear. The events that took
place in the month just preceding Ruiz's September 6 trip to New York
were inextricably intertwined with the evidence of the September 6 and
7 drug transaction. The evidence of the informant's meetings and
negotiations with Ruiz during August helped explain to the jury how
the informant came to know about Ruiz's drug dealing and how Agent
Jackson was involved in the informant's dealings with Ruiz. That
evidence was therefore "a legitimate part of the government's proof in
establishing the conspirac(y) charged in this case." United States v.
Nichols, 750 F.2d 1260, 1265 (5th Cir. 1985). Courts have routinely
upheld the admission of such evidence where it forms an "integral and
natural part of the witness's accounts of the circumstances
surrounding the offenses for which the defendant was indicted." United
States v. Richardson, 764 F.2d 1514, 1521 (11th Cir.), cert. denied,
474 U.S. 952 (1985). See also United States v. Tate, 821 F.2d 1328,
1331 (8th Cir. 1987), cert. denied, 484 U.S. 1011 (1988); United
States v. Saintil, 753 F.2d 984, 987 (11th Cir.), cert. denied, 472
U.S. 1012 (1985); United States v. Webster, 750 F.2d 307, 336 (5th
Cir. 1984), cert. denied, 471 U.S. 1106 (1985). The district court
was careful to limit the evidence to that which was most closely
related to the crimes charged; it excluded other evidence as too
remote or too prejudicial. C.A. App. 150-154, 529-532.
4. Finally, Ruiz argues (Pet. 17-24) that the district court erred
in failing to conduct a hearing to resolve a disputed factual matter
at sentencing. The court of appeals correctly held, however, that the
record adequately supported the district court's finding on the
factual question. Pet. App. 8A-9A.
The matter Ruiz disputed concerned some information used in the
presentence report to compute his criminal history category under the
Sentencing Guidelines. As was explained at the sentencing hearing,
Ruiz's prior state prosecution for drug possession did not result in a
finding of guilt; on May 11, 1988, he was discharged on the condition
that he comply with a one-year supervision program. Pet. App. 8A;
C.A. App. 825-826; Presentence Report 5-6. The probation officer
explained that because there was no adjudication of guilt, no points
were added to Ruiz's criminal history category under Sentencing
Guideline 4A1.1(a), (b), or (c). However, because the conditional
discharge included a period of supervision that was still in effect at
the time Ruiz committed the instant offenses, two points were added
under Sentencing Guideline 4A1.1(d). /3/ Pet. App. 8A.
Defense counsel objected to the two-point addition, arguing that
Ruiz had not been under active supervision, and pointing out that he
had never received any sort of supervision record. C.A. App. 830-831.
Counsel did acknowledge, however, that upon his initial objection to
the first proposed presentence report, the probation officer contacted
the New Jersey court and later added more information to the report,
which showed that Ruiz's New Jersey case had been referred for
prosecution following the report of the instant conviction. C.A. App.
825-826, 831; Presentence Report 6. Ruiz did not contest that
information. The probation officer also testified at the sentencing
hearing that Ruiz was under supervision at the time of the offense in
this case. C.A. App. 828-829. The district court expressed its
satisfaction with the information provided and overruled the defense
objection to the two-point addition. C.A. App. 832.
Ruiz argues that the government failed to introduce sufficient
evidence that he was under supervision in New Jersey. /4/ The
Sentencing Guidelines address the problem of resolving disputed issues
in sentencing proceedings. Sentencing Guideline 6A1.3 states that the
parties should "be given an adequate opportunity to present
information to the court regarding (a disputed) factor," and the
accompanying commentary explains that it is up to the sentencing court
to determine the appropriate procedure for resolving factual disputes.
As under previous sentencing law, hearsay and other information not
admisible at trial may be considered; the major consideration is
whether the information "has sufficient indicia of reliability to
support its probable accuracy." Id.; United States v. Tucker, 404 U.S.
443, 446 (1972); United States v. Roberts, 881 F.2d 95, 105-106 (4th
Cir. 1989); United States v. Lee, 818 F.2d 1052, 1055 (2d Cir.),
cert. denied, 484 U.S. 956 (1987).
Although the court must be satisfied that challenged information is
reliably accurate, and the government bears the ultimate burden of
proof whenever the effect of the disputed information may be to
increase a defendant's sentence, United States v. Urrego-Linares, 879
F.2d 1234, 1239 (4th Cir.), cert. denied, 110 S. Ct. 346 (1989), the
court is not under an obligation to conduct an evidentiary hearing
whenever information in a presentence report is challenged. United
States v. Lee, 818 F.2d at 1056. Ruiz questioned whether the
information about his being under supervision was accurate before the
final version of the presentence report was presented to the court;
the probation officer obtained additional information from the state
authorities. Ruiz did not challenge the accuracy of that information,
which bore clear indicia of reliability, /5/ nor did he offer any
other information challenging the matter other than his continued
assertion that he was not under supervision. The evidence before the
court was therefore amply sufficient to support a finding that Ruiz
was under active supervision at the time of the instant offense.
United States v. Restrepo, 832 F.2d 146, 149-150 (11th Cir. 1987).
/6/
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
KENNETH W. STARR
Solicitor General
ROBERT S. MUELLER, III
Assistant Attorney General
KATHLEEN A. FELTON
Attorney
NOVEMBER 1990
/1/ The government also introduced telephone toll records that
showed nine calls between August 24 and September 6, 1988, from the
number at Ruiz's residence in Fayetteville to the telephone numbers in
New York registered to petitioner Diaz. C.A. App. 536-539; GX 1, 2,
3.
/2/ The rest of Ruiz's statement, which did not mention Diaz, was
harmless as to him. See Cruz, 481 U.S. at 192. The district court
had initially ruled that Diaz's statement also had to be redacted,
since his claim of no knowledge implied that Ruiz did have guilty
knowledge of the drugs that were found in his bag. C.A. App. 110-113,
146-147. The district court reversed that decision during the trial,
however, when Ruiz conceded his guilt on the substantive charges.
C.A. App. 574, 578.
/3/ Sentencing Guideline 4A1.1(d) provides:
Add 2 points if the defendant committed the instant offense
while under any criminal justice sentence, including probation,
parole, supervised release, imprisonment, work release, or
escape status.
/4/ Petitioner also argues (Pet. 18-19) that the appropriate
standard of proof should be "clear and convincing evidence." In
McMillan v. Pennsylvania, 477 U.S. 79 (1986), however, this Court
rejected the argument that a sentencing court must apply a clear and
convincing evidence standard to factual findings involved in the
sentencing process; it held that due process is satisfied by
application of a preponderance of the evidence standard. Since the
adoption of the Sentencing Guidelines, the courts of appeals have
uniformly held that the preponderance standard, not the reasonable
doubt or clear and convincing evidence standard, governs factual
findings made under the Guidelines. United States v. Wilson, 900 F.2d
1350, 1353-1354 (9th Cir. 1990); United States v. Frederick, 897 F.2d
490, 491-493 (10th Cir.), cert. denied, 111 S. Ct. 171 (1990); United
States v. Alston, 895 F.2d 1362, 1373 (11th Cir. 1990); United States
v. Carroll, 893 F.2d 1502, 1506 (6th Cir. 1990); United States v.
Blanco, 888 F.2d 907, 909 (1st Cir. 1989); United States v. White,
888 F.2d 490, 499 (7th Cir. 1989); United States v. McDowell, 888
F.2d 285, 290-291 (3d Cir. 1989); United States v. Guerra, 888 F.2d
247, 250-251 (2d Cir. 1989), cert. denied, 110 S. Ct. 1833 (1990);
United States v. Ehret, 885 F.2d 441, 444 (8th Cir. 1989), cert.
denied, 110 S. Ct. 879 (1990); United States v. Urrego-Linares, 879
F.2d 1234, 1237-1238 (4th Cir.), cert. denied, 110 S. Ct. 346 (1989).
/5/ The information before the sentencing court showed that Ruiz
was given a conditional discharge four months before commission of the
instant offense, on the condition that he comply with the one-year
supervision program. The probation officer learned that the New
Jersey case had been referred to court for prosecution as a result of
Ruiz's conviction in this case. The fact that deferred prosecution
had been initiated clearly showed that Ruiz had not successfully
completed and been discharged from the one-year supervision program;
the State would not have referred the case for prosecution if Ruiz had
already been discharged.
/6/ Ruiz relies on United States v. Palta, 880 F.2d 636, 641 (2d
Cir. 1989), and United States v. Cifuentes, 863 F.2d 1149, 1151-1156
(3d Cir. 1988), to support his claim that a hearing was required. But
those cases are easily distinguishable. In each, the defendant had
raised objections to important sentencing factors, which seriously
called into question the accuracy of the government's information,
counsel suggested further proceedings to verify the information, and
the district court did not offer an adequate opportunity for the
defendant to rebut the challenged allegations. Here, as we explained
above, Ruiz questioned the information in the course of the
preparation of the presentence report and the probation officer
obtained additional information that confirmed the original statement.
In the absence of any further showing to suggest the unreliability of
that information, the district court could properly rely on the
statements in the presentence report.
Finally, we note that the sentence the court imposed on Ruiz, 72
months, fell within the range appropriate to Criminal History Category
I, the category that would have applied without the points added for
the previous supervision. Since the same sentence could have been
imposed even if the district court had refused to add the two points,
it is not clear that a different resolution of the disputed factual
matter would have made a difference in Ruiz's sentence.